Parental Alienation Syndrome: Frye v Gardner in the Family Courts (Part 2)
by Jerome H. Poliacoff, Ph.D., P.A., Cynthia L. Greene, Esq., and Laura Smith, Esq
[Second of Two Parts: Click here for Part 1]
The Expert’s ObligationFor better or worse there is an inherent conflict between the goals of lawyers and the goals of ethical experts: the legal system is adversarial, science is not. Attorneys need partisan experts to persuade the trier of fact, be it judge or jury. Lawyers, according to Champagne and his colleagues (FN13) “seemingly want articulate, partisan experts with integrity“.
Sales and Shuman (FN14) argue that “to the extent that ethics governs all scientific and professional behavior – which it does – it is only appropriate that it become the first metric against which to judge the expert witnessing of scientists and professionals“.
Sales and Shuman point out that the most obvious case of the applicability of the ethics code to expert witnessing is the obligation to be competent (FN15).
By becoming familiar with the applicable ethical standards governing the professional behavior of psychologists and psychiatrists a more reasoned judgement can be made about the admissibility of PAS in the courtroom. While we rely primarily on the ethical standards for psychologists (FN16) in the following discussion it should be apparent to the reader that these standards speak to expected ethical professional behavior of any designation when one agrees to appear as a mental health expert before the courts.
Section 1.06 Basis for Scientific and Professional Judgements calls for psychologists to “rely on scientifically and professionally derived knowledge when making scientific or professional judgements“. Not having met the standards inherent in Daubert and in Fryerenders PAS unable to pass muster under this brief, but indispensable, ethical dictum.
Rotgers and Barrett (Id) have made an effort to guide psychologists in their considerations concerning serving as an expert witness. They point out four standards of professional conduct that appear to be clearly applicable to psychologists’ expert testimony that are specifically reinforced by the Daubert decision. These include, in addition to Standard 1.06, the following:
- Standard 2.02 “Competence and Appropriate Use of Assessments and Interventions” requires psychologists to select assessment instruments on the basis of research indicating the appropriateness of the instruments for the specific issue at hand and further enjoins psychologists from misusing those instruments.
- Standard 2.04 “Use of Assessment in General and With Special Populations” requires familiarity with the psychometric properties and limitations of assessment instruments used in the practice of psychology.
- Standard 2.05 “Interpreting Assessment Results” requires psychologists to directly state reservations they may have about the accuracy and limitations of their assessments.
As has been noted in the section above, PAS does not meet the courts’ threshold requirement to qualify as scientific. Clearly then, the offering of PAS to the courts as an explanatory construct, let alone a basis for making recommendation about the future of children’s lives, does not meet the minimal set of ethical standards incumbent on experts appearing before the court.